Jensen v. Jensen

• Decision Date: 17 December 1946
• Docket Number: 46894.
• Parties: JENSEN v. JENSEN et al.
• Court: Iowa Supreme Court

25 N.W.2d 316

237 Iowa 1323

JENSEN v. JENSEN et al.

No. 46894.

Supreme Court of Iowa

December 17, 1946

Yeaman & Yeaman, of Sioux City, for appellants.

Wallace W. Huff, of Sioux City, for appellee.

GARFIELD Chief Justice.

On April 24 1944, plaintiff-husband was granted a divorce on the ground of inhuman treatment. The parties stipulated and the court decreed custody of the minor child be awarded Edith Holbrook, mother of defendant-wife. Plaintiff was to pay $7.50 a week for the child's support. In January 1946, plaintiff filed application to modify the decree so that he be awarded custody of the child, then age 7.

The application states plaintiff was in the navy when the divorce was granted and did not have a suitable home for the child it was understood by the parties the child's custody would be changed upon plaintiff's discharge from the service; plaintiff has been discharged from the navy, remarried, a good job and suitable home and is qualified to resume care of his child; Edith Holbrook is not a 'qualified person to continue to have the custody of the child as against the natural parent.' Defendant-wife (who has remarried) and the grandmother filed resistance to the application in which they ask that the child's custody be not disturbed but if for any reason the decree were to be modified then the child should be given to her mother.

Following the taking of testimony the trial court awarded plaintiff the child's custody and deleted the provision of the decree for his payment of $7.50 a week for support. Defendant and the grandmother have appealed. We think custody of the child should have been left with the grandmother and the decree should not have been modified.

Under our repeated holdings and the authorities generally, the divorce decree is final as to the circumstances then existing. It can be modified only if plaintiff has carried the burden of proving by a preponderance of the evidence that subsequent conditions have so changed that the welfare of the child demands such modification. See, for example, Goodrich v. Goodrich, 209 Iowa 666, 668, 669, 228 N.W. 652, and cases cited; Neve v. Neve, 210 Iowa 120, 230 N.W. 339, and cases cited; 17 Am.Jur. 519, section 684; 2 Nelson Divorce and Annulment, 2d Ed. (1945) 257, section 15.49. Additional authorities to the effect the burden of proof rests upon plaintiff are Wood v. Wood, 220 Iowa 441, 444, 262 N.W. 773; Morrison v. Morrison, 208 Iowa 1384, 1386, 227 N.W. 330; 27 C.J.S., Divorce, § 317c(5), p. 1195.

We have said time and again and the modern authorities agree that in a matter of this kind the welfare of the child is superior to the claim of either parent and the wishes of the parent are entitled to little if any consideration. Freese v. Freese, Iowa, 22 N.W.2d 242, 246, and cases cited; Lancey v. Shelley, 232 Iowa 178, 2 N.W.2d 781, and cases cited; Horn v. Horn, 221 Iowa 190, 195, 265 N.W. 148; 27 C.J.S., Divorce, § 317b, p. 1189; 2 Schouler on Marriage, Divorce and Separation, 6th Ed., 2047, section 1901; Schouler Divorce Manual (1944) 463, section 310b. Nor should the decree be modified to reward or punish either parent. 27 C.J.S., Divorce, § 317b, p. 1190.

It is not claimed there is any material change in conditions in the grandmother's home that requires taking the child's custody from her. It affirmatively appears there is no such change. The witnesses, including plaintiff, speak highly of the devoted care and excellent home of the grandparents with whom the child has spent the greater part of her life. The grandfather has worked 31 years for one employer while he and his wife reared eight children and fully paid for their home of eight rooms and bath.

Plaintiff himself testified:

'Q. Mr. and Mrs. Holbrook live in the same block where the school is? A. Yes, it is just around the corner from the schoolhouse.

'Q. And they own their own home there? A. Yes. * * *

'Q. And they have a nice home out there? A. They do.

'Q. And it has always been a good home for your daughter? A. Well, she is always well taken care of and everyting, yet.

'Q. She had the child at the time you and your first wife were divorced? A. That is right.

'Q. How long has she had her? A. For the last three years.'

Trial on plaintiff's application to modify was had on January 31, 1946. Therefore the child lived with her grandparents, according to the above testimony, since about fifteen months before the divorce was obtained on April 24, 1944, at least eight months before plaintiff entered the navy in October, 1943, and about six months before plaintiff filed his petition for divorce on July 27, 1943. Both grandparents testified the little girl had been with them four years prior to the trial. Plaintiff later admitted Thelma had been with her grandmother four years, 'but she was not there all the time.' Over ten months more have elapsed since the trial, during which presumably Thelma has remained with her grandmother as the trial court directed, pending appeal.

To continue with plaintiff's testimony:

'Q. That (grandparents' home) is the only home the little girl has known? A. Just about, yes.

'Q. It is a very good home? A. Yes.

'Q. You have no complaint about the way the child has been taken care of? A. As far as care and clothing and things are concerned, no. She has been well taken care of, yes. They sent her to school all the time. Sunday school, yes. * * * The grandparents have given her good care and all their love and everything else.'

The grandmother, 58 years old said: 'I always gave her a good home and sent her to school since she was old enough. I furnished her a good room to sleep in and plenty of good food and always sent her to Sunday School. * * * I think as much of her as I would of my own child; my husband is also attached to her.'

On cross-examination the grandmother testified one of her eight children, a daughter who had been divorced, spends considerable time at her home; this daughter has one child; 'at times I take care of her little girl too.' It is not shown nor claimed that the presence of this daughter in the home nor the occasional care furnished her little child is a circumstance that has changed since the divorce was granted nor that it is detrimental to Thelma's welfare. So far as shown, present conditions with respect to these matters are the same as at the time of the divorce.

Mr. Holbrook, age 54, said: 'I love this little girl; she goes to school regularly, she is well clothed and groomed; I take her to Sunday School in the car, and she gets along with wife and I very fine.'

A neighbor testified she went frequently to the Holbrook home, it is kept nice and clean, 'Thelma always is very nice and clean,' it is a very good home for her.

That Thelma has thrived under the devoted care of her grandparents is shown without question. The principal of the school attended by Thelma said:

'Q. Have you watched her pretty closely in her progress going to school there? A. I have. * * * Thelma has the evidence of all the care needed for a child to come to school and do good work. She is clean, well and warmly clad, and we have found no reason to complain about her cleanliness or clothing.

'Q. What has been her deportment since she has been there? A. Very, very good. * * * Her scholastic achievement is the best of her class of about twenty. She had the highest scholastic marks for the present semester. Her behavior is splendid.'

There is no substantial dispute in any of the above testimony.

The desired modification of the divorce decree would mean a change from known conditions that have proven conducive to the child's welfare to surroundings of which we know little and that may well prove not for her best interests. It would be in the nature of an experiment which should not be made. It is true plaintiff was honorably discharged from the navy, remarried, living in two rooms and had a job. But under the evidence these changes in plaintiff's situation do not warrant the conclusion that the welfare of the child requires the modification of the decree.

Plaintiff cannot now (we refer to the time of trial) furnish his daughter as desirable a home as the one to which she has been accustomed about as far back as her memory goes. The record is silent as to the size and desirability of the two rooms occupied by plaintiff. (It is to be kept in mind plaintiff has the burden of proof.) We know nothing of the neighborhood in which plaintiff lives nor of the proximity to school or Sunday school. If we affirmed the trial court, in all probability the child, during the school year, would be taken out of the school in which she leads her class. There is no showing, for example, as to available toilet or laundry facilities in the two rooms. It is not shown that plaintiff has an automobile, as the grandparents do, in which to take Thelma to Sunday school or other desirable places, nor even that Thelma would be sent to Sunday school. About all we know is that she would be crowded into two rooms with her father and his 22-year old bride whom she has seen but once, after being accustomed to sleeping in a good room of her own in a modern 8-room house. Plaintiff testified merely, 'I have two rooms in apartment. It is permissible to have children there. The proprietor told me it would be all right until I could find a place; I wanted to buy a place.'

Obviously care of the little girl, with the desired change in custody would fall largely upon plaintiff's bride of whom we know little. Is is probable the new wife would be more devoted to the child than the grandparents have proven to be, or that Thelma would continue to get 'plenty of good food' as she now gets? Will the new wife be a good housekeeper? As to these and other pertinent matters we...